United States v. Irving
42 U.S. 250 (1843)

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U.S. Supreme Court

United States v. Irving, 42 U.S. 1 How. 250 250 (1843)

United States v. Irving

42 U.S. (1 How.) 250


When a collector is continued in office for more than one term, but gives different sureties, the liability of the sureties is to be estimated just as if a new person had been appointed to fill the second term.

When the accounts of a collector are returned to the Treasury quarterly, and the date of the commencement and expiration of his term of office is on some intermediate day between the beginning and end of the quarter, a restatement and Treasury transcript of his account up to the end of his term is legal evidence in a suit against the sureties.

Such a restatement does not falsify the general accounts, but arranges the items of debits and credits so as to exhibit the transactions of the collector during the four years for which the sureties were responsible.

The amount charged to the collector at the commencement of his second term is only prima facie evidence against the sureties.

But payments into the Treasury of moneys accruing and received in the second term should not be applied to the extinguishment of a balance apparently due at the end of the first term. Payments made in the subsequent term, of moneys received on duty bonds, or otherwise, which remained charged to the collector as of the preceding official term, should be so applied.

The settlement of quarterly accounts at the Treasury, running on in a continued series, is not conclusive. The officers of the Treasury cannot, by any exercise of their discretion, enlarge or restrict the obligation of the collector's bond. Much less can they, by the mere fact of keeping an account current in which debits and credits are entered as they occur, and without any express appropriation of payments, affect the rights of sureties.

Page 42 U. S. 251

This case came up from the circuit court for the Southern District of New York under a certificate of division in opinion between the judges of that court upon the two following points:

1. Whether the transcript from the books and proceedings of the Treasury, given in evidence on the part of the United States to show the indebtedness of Swartwout on 28 March, 1834, on which day the second term of office of said Swartwout expired, was in this case competent and legal evidence for that purpose.

2. Whether the payments made by said Samuel Swartwout subsequently to the said 28 March, 1834, should be applied to the discharge of his indebtedness existing on said 28 March, 1834, or accruing during his second term of office, or whether such payments should be applied to the discharge of his indebtedness accruing after that time.

The facts in the case were as follows:

Swartwout was appointed collector at the port of New York on 1 May, 1829; but his proceedings during this, his first term, have nothing to do with the present case.

On 29 March, 1830, his second term commenced, and he was appointed for four years.

On 22 June, 1830, he gave a bond for the faithful performance of his duties in the mode prescribed by law, with several sureties, one of whom was Henry Eckford, whose executors are parties to this suit. The penalty of the bond was $150,000, and the condition ran thus:

"Now therefore if the said Samuel Swartwout hath truly and faithfully executed and discharged and shall continue truly and faithfully to execute and discharge all the duties of the said office according to law, then the above obligation to be void and of none effect; otherwise it shall abide and remain in full force and virtue."

Quarterly accounts were rendered to the Treasury Department according to law, but they continued to be made out, as they had been during his temporary appointment, running from 1 January to 31 March, from 1 April to 30 June, and so on. In these quarterly accounts were stated the various sums received by him on account of the government and also the payments which he had made on behalf of the United States, although it often happened that the covering warrants

Page 42 U. S. 252

from the Treasury, the final vouchers for such payments, were not received in time to be returned with said quarterly accounts, in which case they were thrown into the next quarter, when the proper credits were given.

Swartwout's third term of office commenced on 29 March, 1834, and the bond which he gave contained a condition similar to the one which has been recited, but Henry Eckford was not one of his sureties. The time, therefore, covered by Eckford was from 28 March, 1830, to 28 March, 1834, inclusive of the latter day.

In his accounts for 1834, Swartwout continued to make them up for the quarters of the year, as he had done, and his account for the first quarter was brought up to, and ends on, 31 March. No account was filed by him ending on 28 March. The one ending on the 31st shows a large balance of "cash on hand."

In adjusting this account, the auditor began with charging Swartwout with the balance as it stood against him in the preceding account, then charged him with all the moneys which he had received in that quarter. Having given him credit for various sums paid into the Treasury and paid to individuals under proper authority, he strikes a balance in favor of the United States, which is stated to consist of bonds uncollected, not due, bonds in suit, general bonds for spirits, wines &c., and cash on hand.

In adjusting the account for the ensuing quarter, ending on 30 June, 1834, the auditor brought forward the entire balance standing against Swartwout in the last account, and then proceeded to charge and credit him as before.

In April, 1839, these accounts were restated by order of the first comptroller so as to make the first account end on 28 March, 1834, instead of the 31st. The restatement begins on 28 March, 1830, and runs through the whole four years of Eckford's suretyship, ending on 28 March, 1834, and shows a balance of cash due to the United States, of $486,455.24. A certified copy of this paper is the transcript mentioned in the certificate of division of opinion in the court below.

Page 42 U. S. 257

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